THE INTERPRETATION OF ARTICLE 12 (3) REVISITED: THE QUESTION OF STATEHOOD BEFORE THE INTERNATIONAL CRIMINAL COURT
Languages spoken: German, English, French, and Spanish
Thesis Advisor: Professor Cecile Aptel
On January 21, 2009, the Palestinian National Authority lodged a declaration with the Registry of the International Criminal Court (ICC), indicating the referral of jurisdiction to the Court by the “Government of Palestine” pursuant to Article 12 (3) of the Rome Statute. Its aim is to give the ICC the authority to identify, prosecute, and judge the authors and accomplices of acts committed on the “territory of Palestine” since July 1, 2002. After more than three years of deliberations, the OTP delivered a statement on April 3, 2012, explaining why it considers itself incompetent to pronounce on the question of Palestinian statehood and deferred the issue to the General Assembly of the United Nations and the Assembly of State Parties to the ICC. However, the deferral of the decision does not solve the issue for good. It will now be up to other competent bodies to answer the question of what is actually meant by the term “state” in Article 12 (3) of the Rome Statute. Depending on the definition, entities short of being states beyond reasonable doubt could come under the jurisdictional ambit of the Court if they decide to lodge a similar declaration.
The thesis examines the various legal positions brought forward on the matter up to this point. Building on this panoply of thought, the thesis develops criteria for statehood in the specific context of the Rome Statute, arguing that the Court should give priority to those criteria of statehood that can be derived from a rigorous interpretation of its founding documents. By applying those criteria to the Palestinian referral, the thesis suggest that the Court can accomplish both refraining from becoming embroiled in the larger political struggle over Palestinian statehood and strengthening the regime of international criminal justice.
Christian Schiller received his Bachelor of International Relations (B.A.) with a specialization in public international law from Dresden University. In the run-up to his studies, he worked for the Visa & Immigration Department at the Australian Embassy Berlin. After completing a semester abroad in Nice (France) at the Institute of Peace and Development Law (Institut du Droit de la Paix et du Développement), Christian interned at the Protocol Office of the German Embassy to the United States in Washington, D.C., where he helped to launch the Transatlantic Climate Bridge. As a grantee of the German government, he has worked with the Legal Advisory Service at the Office of the Prosecutor of the International Criminal Court. In this position, he conducted various legal research for the Prosecutor, including comparative legal analysis of German penal law and of States’ international legal obligations vis-à-vis the Court. He has been awarded a Fulbright grant for his studies at Fletcher School and holds a scholarship from the German National Academic Foundation. At Fletcher, Christian focused on international criminal law and energy policy, and aims to either pursue a political career in Germany, work as an international consultant in the field of renewable energy, or join the European External Action Service. Upon completion of his studies at Fletcher, he did a fellowship with Meister Consulting, a small German-American consulting firm in Boston, MA, in the field of renewable energy. Chris is now Senior Law Clerk and Special Assistant to Alan Crain Jr., Senior Vice President and General Counsel of Baker Hughes Inc., in Houston, TX, a contact made through one of the Fletcher LLM Program’s High Table talks.